South Australian Developers Pty Ltd ATF South Australian Developers Unit Trust (Migration)

[2019] AATA 3547

South Australian Developers Pty Ltd ATF South Australian Developers Unit Trust (Migration) [2019] AATA 3547 (20 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  South Australian Developers Pty Ltd ATF South Australian Developers Unit Trust

CASE NUMBER:  1808594

DIBP REFERENCE(S):  BCC2017/1268335

MEMBER:Stavros Georgiadis

DATE:20 June 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 20 June 2019 at 4:52pm

CATCHWORDS

MIGRATION – Nomination – Temporary Residence Transition nomination stream – training requirements – training benchmarks not met – decision under review affirmed

LEGISLATION

Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 March 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 4 April 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f)(i) of the Regulations in respect of fulfilling training requirements during the period of the nominator’s most recent approval as a standard business sponsor (SBS) and that it was not considered reasonable to disregard the requirements.

5. The applicant is a corporate trustee for a unit trust, South Australian Developers Pty Ltd ATF South Australian Developers Unit Trust.  Mr Daljeet Singh, sole company director, appeared before the Tribunal on behalf of the applicant on 20 June 2019 by telephone conference to give evidence and present arguments.

6. The applicant was represented in relation to the review by its registered migration agent.

7. At the hearing on 20 June 2019 the Tribunal made an oral decision to affirm the decision under review to refuse the nomination and gave an oral statement of decision at the end of the hearing that morning. The following is the written record of the reasons for the oral decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   Training commitments and obligations: r.5.19(3)(f)

9. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training  requirements, during the period of the  applicant’s most recent sponsorship approval.  These requirements may be disregarded if it is reasonable to do so.

10. A standard business sponsor (SBS) who is lawfully operating a business in Australia at the time of approval as a standard business sponsor must contribute to the training of Australians by:

    • spending an equivalent of at least two per cent of payroll in payments to an industry training fund that operates in the same industry; or
    • spending an equivalent of at least one per cent of payroll in the provision of training to employees of the business who are Australian citizens or Australian permanent residents.

11. The applicant was approved as a standard business sponsor on 17 September 2014 for a period of three years to 17 September 2017 as confirmed in the Department’s records and in the applicant’s oral evidence before the Tribunal.

12. The application is for approval of the nomination of the position of Hairdresser (ANZSCO 391111) in which Ms Rajwant Kaur is named as the nominee. This was lodged on 4 April 2017 after the applicant had already received approval as a SBS.  Ms Rajwant Kaur was granted a Subclass 457 visa on 9 February 2015 for four years after first coming to Australia on a Student (TU-572) visa on 12 June 2009.

13. The delegate noted that the applicant claimed to have incurred payroll expenditure of $102,159 for the 12 months prior to the application lodged on 4 April 2017 set out in the application form.  In the same period, the nominator had claimed to have paid $2,050 towards training of Australian citizens or permanent residents in satisfaction of the training benchmarks criterion for approval of the nomination for the position.  The delegate considered that the applicant had not provide verifiable evidence to support these claims and was not satisfied that the business had met the training benchmarks requirement of 1% of payroll in the provision of training to relevant employees of the business or alternatively, 2% of payroll in payments to an industry training fund operating in the same industry. The applicant confirmed at the hearing that a copy of the delegate’s decision of 8 March 2018 was attached to the application for review.

14. When asked at the hearing to provide any evidence to support the claim of meeting the training commitments and obligations under r.5.19(3)(f), the applicant sought additional time to do so. The Tribunal considered allowing additional time but ultimately declined to do so. The reasons for this are: firstly, the issue of falling short of the training criteria had been squarely raised in the delegates’ decision of 8 March 2018 and well known to the applicant; secondly, the applicant had been invited to participate in a call-over conference on 28 May 2019 to discuss what evidence and information about the case might be required at the hearing (but had declined to attend the call-over and no alternative arrangements were requested or made); and finally, had already provided financial records and other documents to the Tribunal before the hearing, which the applicant seeks to rely upon to meet this requirement.

15. The applicant provided financial reports for the 2016 and 2017 years in respect of the business.  He responded when asked at the hearing, that these financial records had been prepared by his accountant (MPG Tax Accountants), were complete and accurate, and had been lodged with the Australian Taxation Office.  The Tribunal indicated that in these circumstances, it would consider this material where relevant to the matter.

16. The Tribunal notes the applicant’s reference to the receipt dated 17 March 2018 from TAFE Sydney Institute for the sum of $2,400, being payment to an industry Hairdressing and Beauty Scholarship Fund.  The Tribunal notes this is after the period of SBS sponsorship ended on 17 September 2017 but does not consider this adverse to the application.

17. The training expenditure obligation under the last SBS approval begins on the day the applicant is approved as a sponsor - here 17 September 2014 and continues throughout the three-year period of the last sponsorship approval. The obligation must be met for each 12-month period within which the applicant employs a sponsored visa holder (including if the sponsored visa holder is not employed by the applicant for the full twelve months). Where approval as a standard business sponsor is varied, the applicant must meet the training requirement if they employ one or more primary sponsored persons. The Tribunal is satisfied that the applicant employed the primary sponsored person commencing in 2014 and that she became the applicant’s full-time Hairdresser in 2015 and ongoing during the period of SBS sponsorship.

18. When considering the spending by the business as a percentage of payroll in the provision of training to Australian citizens or Australian permanent resident employees of the business, the applicant made reference to the aforementioned financial statements for FY 2016 and FY 2017 prepared by his accountant. The Tribunal accepts the oral evidence that in 2017, the payroll was $107,316 and that staff training expenditure for that year was $659.63 that is short of the requisite 1% of payroll. The Tribunal also accepts the evidence that in 2016, payroll was $91,968.53 and that no ($Nil) expenditure was spent on staff training. The Tribunal accepts that this took place during the three year period of the last SBS approval and that there is no further evidence of expenditure demonstrated for the relevant years (i.e. to an industry training fund that operates in the same industry) for the purposes of meeting the criteria under r.5.19(3)(f).

19. The Tribunal put to the applicant that in these circumstances, it appeared the applicant would not be able to meet the requirements of the training commitments and obligations set out under r.5.19(3)(f) and invited comment as to whether the Tribunal should disregard these requirements (r.5.19(3)(f)(ii)). In response, the applicant reiterated that he wanted more time as he thought he met the requirements, but was vague as to why he believed the criteria are met. The Tribunal considered the request and asked the applicant if there was any reason why it should not rely on the aforementioned financial reports from his accountant discussed in his oral evidence that had been provided for the review - of which there was none. The Tribunal further checked with the applicant whether there had been any amendments made to the financial reports. He responded that the reports had been lodged with the ATO by his tax accountant, and confirmed that there had been no amendments. In light of this, the Tribunal places weight on the financial records discussed above and the oral evidence of the contents therein.

20. Having considered the available evidence before it discussed, the Tribunal finds the nominator has not met the training benchmark requirement of 1% of payroll of the business in the provision of training to relevant employees of the business during the period of the nominator’s most recent approval as a standard business sponsor; or alternatively 2% of payroll in payments to an industry training fund that operates in the same industry - as required under r.5.19(3)(f)(i).

21. The Tribunal has considered whether it is reasonable to disregard the training benchmark requirements under r.5.19(3)(f)(i).

22. The Tribunal has weighed up the applicant’s submissions and all the evidence before it and has considered a number of factors in respect of whether to disregard the training benchmark requirements in r.5.19(3)(f)(i). The Tribunal considers that meeting the training requirement of 1% of payroll or 2% to a relevant industry training fund each year of SBS approved sponsorship, is not an overly onerous requirement on a business - even one the small size, nature and regional location (South Australia) of the applicant’s. The financial records show that the business had been consistently profitable. The Tribunal has taken into consideration the applicant’s oral and other evidence discussed above and that the applicant had access to migration agent assistance and advice in respect of its application for approval of the nomination. The Tribunal has considers the applicant has had abundant opportunity to provide evidence to substantiate the criteria required or make submissions to disregard the requirements.

23. In the circumstances overall, the Tribunal considers it is not reasonable to disregard the training requirements in r.5.19(3)(f)(i) under r.5.19(3)(f)(ii), and it does not in this particular case.

24. Accordingly, the requirement in r.5.19(3)(f) is not met.

25. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

26. The Tribunal affirms the decision under review to refuse the nomination.

    Stavros Georgiadis
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    Temporary Residence Transition nomination

    (3)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:         

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)are provided; or

    (ii)would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.